{ "id": 4798989, "name": "Thomas M. Meldrum vs. Sam. S. Shubert, et al.", "name_abbreviation": "Meldrum v. Shubert", "decision_date": "1904-03-12", "docket_number": "", "first_page": "293", "last_page": "300", "citations": [ { "type": "official", "cite": "2 Ill. Cir. Ct. Rep. 293" } ], "court": { "name_abbreviation": "Ill. Cir. Ct.", "id": 14968, "name": "Illinois Circuit Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "20 N. Y. Supp. 46", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 5623093 ], "opinion_index": 0, "case_paths": [ "/nys/20/0046-01" ] }, { "cite": "21 Cal. 448", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2260841 ], "opinion_index": 0, "case_paths": [ "/cal/21/0448-01" ] }, { "cite": "136 Ill. 215", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2992620 ], "opinion_index": 0, "case_paths": [ "/ill/136/0215-01" ] }, { "cite": "142 Ill. 494", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3086648 ], "opinion_index": 0, "case_paths": [ "/ill/142/0494-01" ] }, { "cite": "54 Ill. 439", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5276067 ], "opinion_index": 0, "case_paths": [ "/ill/54/0439-01" ] }, { "cite": "82 Fed. Rep. 325", "category": "reporters:federal", "reporter": "F.", "opinion_index": 0 } ], "analysis": { "cardinality": 675, "char_count": 14090, "ocr_confidence": 0.516, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15372633694087956 }, "sha256": "715cb784db4b578cc53cf1bd60ce941992f6c52219619c28ba3d54f7eaa38fe3", "simhash": "1:2bb2f49bfc2d525a", "word_count": 2385 }, "last_updated": "2023-07-14T18:33:53.970599+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Thomas M. Meldrum vs. Sam. S. Shubert, et al." ], "opinions": [ { "text": "Opinion.\nHoldom, J.\n(after stating the foregoing facts):\u2014\nAt the time complainant adopted the name of \u201cGarrick Theater\u201d to designate Ms place of amusement he had a perfect legal right to do so and in so doing neither interfered, nor trespassed upon the right of any other person in Chicago. It became and was the only \u201cGarrick Theater\u201d in Chicago. His legal right to exclusively use and maintain this name for his theater must be tested under that branch of the law designated as \u201cTrade Marks or Trade Names,\u201d the principles of the former being applicable to the latter and resting for their maintenance upon the same correlative legal right and equitable principle.\nIs the complainant entitled to maintain this right to the exclusion of the defendants within the limits of the city of Chicago, or may defendants share that right with him? If it can be so maintained it must find its support in primary actual use as distinguished from an adoption coupled with an intent to actually use at some time in the future.\nAll the authorities' decide, wherever the question has been presented for adjudication, that to entitle one to the use of a trade-mark or name, two conditions must exist: first, adoption of the name or mark, and second, its actual use; and the latter is as essential as the former to confer the right. Kathreiner\u2019s Malzkaffee Fab. v. Pastor Kneipp Med. Co., 82 Fed. Rep. 325.\nIf a trade-mark, the emblem or symbol must be attached to the article designated to be protected, and if a trade name, then such name must be actually used in connection with the establishment which it is intended to designate, be it a hotel, theater, or business house. Candee, Swan & Co. v. Deere & Co., 54 Ill. 439; Hazleton Boiler Co. v. Hazleton Tripod Boiler Co., 142 Ill. 494-507; Bolander v. Peterson, 136 Ill. 215-217.\nPaul on Trade Marks-makes the following definition's in sections 160 and 172: \u201cA trade or a commercial name is the name under which a business is carried on, or by which it is designated, or the name of a place at which a business is located. * * * A trade name should be considered and treated as a trade mark..\u201d\nThe supreme court of California applied these definitions in deciding Woodward v. Lazar, 21 Cal. 448, colloquially referred to as the \u201cWhat Cheer House Case.\u201d It said on page 451: \u201cIt has been decided, and with good reason, that the name established for a hotel is a trade mark, in which the proprietor has a valuable interest, which a court of chancery will protect against infringement.\u201d The legal principle here announced is applicable with as much force to the theater of complainant in the case at bar, and is a controlling principle. In fact, no well-authenticated case within my knowledge holds to the contrary.\nThe only case cited to support defendant\u2019s contention that the intention to adopt a name preserves the right to the one who, following on such declared intention, in fact does adopt, such a name, is the case of Kingsley v. Jacoby, 20 N. Y. Supp. 46. At the time of the institution of the action Kingsley had in course of construction on a prominent thoroughfare in. New York City, a hotel under plans designating it as the. \u201cHolland House.\u201d Kingsley at that'time had a wide and extended reputation as a caterer and the hotel at that time was well known in New York as the \u201cHolland House.\u201d The defendant, Jacoby, a dealer in cigars, registered a brand of cigars as \u201cThe Holland House Boquets,\u201d claiming in defense that he did so because some of the tobacco of which they were made, was purchased from Holland houses engaged in the tobacco business \u2014 which the court characterized as a \u201cdisingenious afterthought\u201d in the light of his letter to Kingsley, in which he said \u201cthe well known and just deserved popularity of your hotel has served as an inducement for me to apply its name, so widely known, to one of my new and best brands of cigars.\u201d Nothing said by the court in its opinion can be construed as holding that Kingsley was protected in the use of the name \u201cHolland House,\u201d because of an expressed intention to so call his hotel. The name had been actually applied to the hotel, and the court said in its opinion \u201cthat it was well known in the City of New York as \u2018Holland House. \u2019 \u201d However, the decision rested on the principle of unfair competition. Jacoby held himself out to the public-as selling Holland House cigars for the purpose of profiting: in their sale by reason of the well known reputation of that house for the excellent quality of the things emanating from it. This was a fraud in fact, as the Holland House had nothing whatever to do with Jacoby\u2019s so-styled brand of cigars.\nIt is insisted on the part of the defendants that complainant has not and can not suffer any pecuniary loss by reason of their operating their theater under the name of \u201cGarrick,\u201d and that if any injury does result it is damage without injury, and that it therefore follows complainant is not entitled to invoke the relief here demanded.\nIt is true that complainant is not seriously menaced with financial loss by reason of defendants design\u00e1ting their theater as the \u201cGarrick\u201d in violation of the right of complainant, to the exclusive use of that name for the Milwaukee Avenue. Theater. Yet the evidence shows beyond controversy that complainant is inconvenienced, interfered with and annoyed' in the conduct of his theatrical enterprise because of the existence of these dual theaters with the same name.\nIf the right to the exclusive use of the name \u201cGarrick\u201d by complainant is established, then aside from the question of his financial loss by reason of the invasion of such right by defendants, he would on the ground of inconvenience, interference and annoyance, thus resulting to him, be entitled to the relief here sought, regardless of the other question, whether the right to the use of such name may be regarded in law as a property right or not.\nBy complainant\u2019s adopting and actually using in the conduct of his theater the name \u201cGarrick\u201d he acquired a trade name or mark therein which was neither divested nor impaired in any way, by defendants\u2019 expressed intention prior to such use to so call the Dearborn Theater when they should in the future come into possession, of it, nor by their afterward calling it by that name. Neither the advertised intention of defendants so to call their theater prior to complainant\u2019s actually using the name \u201cGarrick\u201d as the name of his theater, nor by, after such adoption and use by complainant of that name, applying the name \u201cGarrick\u201d to their theater, was the right of complainant impaired, nor did the defendants by either or both of said acts become vested with any right to so use the name \u201cGarrick\u201d as against the right of complainant or to use the same in the modified form \u201cGarrick, formerly Dearborn,\u201d without the consent of complainant, or against his protest.\nA decree may be entered enjoining defendants as prayed, 'from using the name \u201cGarrick,\u201d or any modified form thereof in which the name \u201cGarrick\u201d appears, in either the designation or conduct of their theater on Randolph street, Chicago, formerly known as the \u201cDearborn Theater.\u201d\nNote. \u2014 An appeal was taken in the above case to the appellate court for the First District of Illinois. Thereafter the appellee was adjudicated a bankrupt and the trustee in bankruptcy was substituted as appellee. The appellant thereupon purchased, in the bankruptcy proceedings the right to use the name \u201cGarrick Theater.\u201d Error was thereupon confessed in the appellate court by the appellee and the case was reversed without any consideration of the questions involved. The above decision is therefore a final one and in principle it is unreversed. \u2014 Ed.", "type": "majority", "author": "Holdom, J." } ], "attorneys": [ "Taylor E. Brown, Thomas J. Graydon, Wm. Friedman and C. C. Poole, for complainant.", "Herman Frank, of Felsenthal